Religious Liberty | Faith-based law firms gain clout and a milestone: 25 years of battling misperceptions about a constitutional "wall of separation" between secular and religious life

"Tear down that wall!" Continued...

SAN DIEGO - From atop Mt. Soledad, visitors on clear Southern California days look out at the horizon and marvel at how the Pacific Ocean meets the sky in a seamless blue kiss. But for church-state separationists the charm ends there: They find offensive the 43-foot Latin cross that rises from the center of Mt. Soledad's publicly owned peak. For 17 years, ACLU-backed attorney James McElroy and the City of San Diego have debated in court whether the cross is part of a war memorial that should be preserved or a state-established "Easter Cross" that should be torn down.

Those advocating destruction might have had their way not too long ago. But Christian religious-liberty legal groups have changed that. In 2004, the Ann Arbor-based Thomas More Law Center learned that San Diego officials were on the verge of settling the marathon case and offered to intervene.

After a series of fresh skirmishes-including a referendum in which 76 percent of San Diego voters said the cross should stay-a federal judge this May dealt what seemed a final defeat, ordering that the city remove the cross or face fines of $5,000 a day. In June, the 9th U.S. Circuit Court of Appeals upheld the order and the San Diego City Council seemed sapped of its will to fight.

But a last-ditch flurry of legal, legislative, and media maneuvering turned the battle. The Thomas More Law Center urged the city to appeal to the U.S. Supreme Court. Via e-mail and talk radio, the Virginia-based American Center for Law and Justice (ACLJ) and other Christian public-interest litigators mobilized protest. Fox News and conservative talk-radio hosts interviewed ACLJ chief counsel Jay Sekulow and others, raising the case's profile nationally.

The all-out counteroffensive paid off: The San Diego City Council voted 5-3 to appeal to the U.S. Supreme Court for a stay of the federal court's removal order. On behalf of 22 members of Congress, the ACLJ filed an amicus brief arguing for the stay. And on July 3, Justice Anthony Kennedy complied, ordering California courts to allow the cross to remain in place pending related litigation, including a possible Supreme Court appeal. Then on July 19, the U.S. House passed a law that would enable the city to transfer to the federal government ownership of the land underlying the Mt. Soledad monument.

Though the cross's final fate is still in flux, its survival thus far is one symbol of the strength of the Christian religious-liberty legal movement that this month enters its 25th year. The movement's roster today includes such national heavy-hitters as the ACLJ and The Rutherford Institute (Virginia), Liberty Counsel (Florida), the American Family Association Center for Law and Policy (Mississippi), the Becket Fund for Religious Liberty (Washington, D.C.), and the Alliance Defense Fund (Arizona). Smaller groups, such as the Sacramento-based Pacific Justice Institute, take on some high-profile cases but concentrate on regional work.

All are organized as nonprofits funded by charitable donations and offer legal assistance pro bono, or free of charge. Since 1982, they have with mounting success litigated for the First Amendment rights to religious speech, association, exercise, and equal access in arenas from public schools to land use to the workplace.

The first U.S. Congress probably would have approved. That body of legislators-the same men who adopted the First Amendment-in 1787 passed legislation that declared in part: "Religion, morality, and knowledge, being necessary to good government and the happiness of mankind, schools, and the means of education, shall forever be encouraged."

Over the next 100-plus years, public officials encouraged those virtues without endorsing a particular religion. But in 1920, Roger Baldwin co-founded the American Civil Liberties Union, which for the next half-century worked alongside others to reshape First Amendment law to fit a new view: Government must not encourage even in the most general way any belief in God. The result was a systematic attempt at chiseling Christianity out of public life:

In 1925, the ACLU lost in court the Scopes "monkey" trial, but press accounts ridiculing the creationist side elevated the "science" of Creator-free evolution over the "fairy tale" of faith.

In 1947, the Supreme Court ruling in Everson v. Board of Education of Ewing quoted Thomas Jefferson's famous phrase "wall of separation between church and state," ratifying it as the essence of the First Amendment's establishment clause.

In 1948, the high court in McCollum v. Board of Education held that voluntary religious activity at public schools was unconstitutional, quoting Jefferson's "wall" dictum again, this time as constitutional precedent.

1963, the Supreme Court struck down public-school prayer.

In 1971, the court established the widely criticized "Lemon test" which prescribed for the state a strict secularism.

One of those Christians was a former pot-smoking, left-wing underground journalist named John Whitehead. When 1974 began, Whitehead was a liberal civil-rights attorney whose philosophy lined up squarely with that of the ACLU. But that year, God turned him from scoffer to believer and over the next eight years, influenced by the writings of Francis Schaeffer, R.J. Rushdoony, and others, he realized that Christianity had become a minority viewpoint in need of legal protection.

Whitehead in 1982 founded The Rutherford Institute as a public-interest law firm. The Christian Legal Society (CLS), founded in 1961, had long been active as a legal fellowship, and in 1976 it launched the Center for Law and Religious Freedom and began filing amicus (friend of the court) briefs the following year. CLS, though, did not begin direct litigation until 1996: "With the founding of The Rutherford Institute, you saw Christian litigating firms emerge on the model of the ACLU, litigating their own cases," said Hans Hacker, a professor of political science at Stephen F. Austin State University.

From 1989 to 1999 the other major groups emerged. Chris Levenick, an American Enterprise Institute fellow who studies church-state relations, said Christian public-interest legal groups "have been enormously important in this regard. They have provided an institutional counterweight to the mainline secularists." In The Culture of Conservative Christian Litigation, Hacker writes that "many conservative Christian litigators adopted a philosophy fusing tolerance for diverse ideas, sophisticated legal arguments, and respect for professional norms of the practice of law."

Christian lawyers have often advocated positions on free expression "that are decidedly more liberal than their liberal foes," Hacker said. "[Philosopher] John Stuart Mill said that truth profits from its collision with falsehood. That's what these guys believe on many issues." Hacker said the movement as a whole doesn't seek to advance Christianity as a state religion, but rather to preserve the First Amendment rights to free exercise and expression that allow people to advance their ideas in the marketplace, whether those ideas are religious or not.

The various religious-liberty shops have unique personalities driven by both mission and individual leadership. Among them:

Pacific Justice Institute takes on so-called "big game" cases of national import, but remains a champion of the little guy. Attorney Brad Dacus, 42, who founded the group, works through a West Coast network of more than 500 pro bono attorneys. "Our goal is to make sure everyone gets help, even if it's not a high-profile, precedent-setting case," he said. In 2004, PJI fielded 704 requests for assistance. Last year, that number tripled. Among the most prevalent requests are those involving religious land use. "The No. 1 curtailment to church growth according to pastors I've spoken with on the West Coast isn't lack of members or money," Dacus said. "It's local governments restricting them, saying, 'We don't want you.'"

Liberty Counsel founder and chief counsel Mathew Staver once aspired to be a pastor but switched to law after a post-Roe, pro-life video of a child developing in utero convinced him to take his stand at the intersection of faith and the Constitution. Staver's group, ubiquitous in the fight to preserve traditional marriage, in July defended California's Proposition 22, which defines marriage as the union of one man and one woman.

With a $26 million budget, the Alliance Defense Fund is the largest group in the movement. Launched in 1994 by a coalition of evangelical groups, including Focus on the Family, the American Family Association, and others, ADF was originally formed to raise funds, train attorneys in civil-rights litigation, and disperse grants to groups such as those mentioned above, which would then use the money to do battle in court. Headed by former Justice Department attorney Alan Sears, ADF early in this decade became involved in direct litigation and has been involved in major religious-liberties victories.

Headed by super-lawyer Jay Sekulow, the American Center for Law and Justice has become the movement's main Washington Beltway presence. Considered a brilliant Supreme Court advocate, Sekulow has notched nine victories there, the most of any of the groups. He maintains close ties with the Bush administration and weighed in heavily on the president's high-court picks. ACLJ has also built a network on Capitol Hill and works closely with conservative lawmakers to craft legislation that preserves and expands First Amendment rights.

Revolutionary movements, however, don't come of age without internal struggles. Liberty Counsel president Staver once was among the most enthusiastic supporters of the Alliance Defense Fund. He attended the group's first banquet in 1993, received ADF's very first grant, and served on the organization's grants and review committee from 1996 to 2004. But in 2004 Staver broke ties with ADF, following the lead of the American Family Association, the Center for Law and Policy, the Thomas More Law Center, and ACLJ.

Staver charged that ADF had not used its funds as effectively as it should have, and is using its fundraising ability to "freeze out" other religious-liberties groups. But in an interview with WORLD, ADF head Sears spread on a conference table two maps of the United States depicting victories won by ADF and allied organizations in cases involving traditional marriage and First Amendment rights on public university campuses. In black ink, he circled the summary of a case in California: "Won." A circle near Massachusetts: "Won." Georgia: "Won." New York: "Won." He said ADF's goal is to become a "$100 million a year organization," equal in budget to the ACLU. He said, "We're driven to raise funds to achieve growth because we're here to win."

Jay Sekulow and the ACLJ have also encountered criticism over finances. A November 2005 Legal Times analysis of public tax records raised questions about the use of contributions by the network of organizations Sekulow operates in conjunction with the ACLJ. For example, Christian Advocates Serving Evangelism (CASE) is a nonprofit group listed in some donor solicitations as "doing business as ACLJ." CASE's board of directors has three members: Sekulow, his wife Pam, and his son Jordan. In 2001, according to the Legal Times report, CASE "paid a total of $2,374,833 to purchase two homes used primarily by Sekulow and his wife." But Sekulow told WORLD that the houses CASE purchased in 2001 are "routinely used" by senior members of his legal team.

Sekulow's salary was also an object of scrutiny. According to IRS filings, he earned a total of $483,825 from ACLJ and CASE in 2002, Legal Times reported. But in 2003, ACLJ's tax filings reported Sekulow's salary as zero. That same year CASE and ACLJ reported for the first time paying a new entity partly owned by Sekulow, the "Center for Law and Justice," a combined total of $1,358,988; Legal Times said that Sekulow confirmed his salary as "above $600,000." Sekulow did not comment on those specific amounts but said the Legal Times story overall was "inaccurate and unfair" and motivated by disgruntled ex-employees; he stated that criticism "goes with the territory" when an organization is successful. Donations, he added, are up 30 percent this year.

As the movement works through its growing pains, the most pressing religious-freedom issue for several of the groups is same-sex marriage. The Becket Fund for Religious Liberty earlier this year released a series of scholarly papers that showed the far-reaching impact on religious freedom if the practice were broadly legalized ("A coming storm," June 10, 2006).

Since then, gavels have fallen like hammer blows on gay-marriage advocacy. In July alone, courts in New York, Nebraska, Georgia, Connecticut, Tennessee, Washington, and even Massachusetts, where gay marriage is legal, issued rulings in favor of traditional marriage or its supporters. Christian public-interest litigators were involved in every case.

Such litigators still face an uphill battle. "In terms of objective relief, I don't know that they've yet influenced the constitutional landscape as much as their counterparts on the secularist left," the American Enterprise Institute's Levenick said. "But they are advancing arguments that are making headway in the public square and working their way upward, via students, into the legal academy."

Religious-liberty landscape

Key cases, key issues in the battle for free expression

The religious-liberty landscape looks far different than it did 25 years ago. If not for the religious-liberty movement, the United States might look "more like France, where the state is empowered to restrict public religious expression," said political science professor Hans Hacker.

Among the current battlefronts in the church-state war:

Religion in the public square

Christian religious-liberty litigators have posted a mixed record on Ten Commandments displays on government property, including a pair of June 2005 Supreme Court decisions in which the justices upheld a Decalogue monument in Texas while striking down one in Kentucky. Current case: Physician-attorney and church-state activist Michael Newdow continues his private First Amendment war with his second lawsuit to abolish the pledge of allegiance pending before the 9th U.S. Circuit Court of Appeals. He is also planning an appeal in his suit against Congress to have the phrase "In God We Trust" stricken from U.S. currency.

Religious land use

Congress in 2000 responded, passing unanimously the Religious Land Use and Institutionalized Persons Act (RLUIPA) to address conflicts between megachurches and local governments. Since then Christian legal groups have fought successfully for the right of churches both to expand and to use their own land in accordance with their religious doctrine. Current case: Attorneys in Boulder County, Colo., are awaiting a federal ruling on whether county commissioners violated RLUIPA when they refused to approve expansion plans for Rocky Mountain Christian Church.

Abortion

Christian legal groups have worked successfully with state and federal lawmakers to draft and defend laws regulating abortion. The strategy has been an important factor in the overall national decrease in abortion. Current case: The Supreme Court agreed in June to expand its review next term of the federal partial-birth abortion ban, adding a second Bush administration appeal to the docket.

Free expression and equal access

Christian lawyers have fought the quest to kick Christianity off campus, notching wins covering everything from kindergarten drawings of Jesus to high-school pro-life T-shirts to faith groups at public universities. Current case: Arizona State University Students for Life in July filed suit against the school after officials, despite the lack of a written policy, demanded that the group purchase insurance and pay a $300 fee before being allowed to present a pro-life message on campus.

Same-sex marriage

Considered by many today's most pressing religious-liberty issue, homosexual marriage litigation erupted in dozens of states after San Francisco Mayor Gavin Newsom authorized city licenses for same-sex marriages in 2004. With the aid of Christian legal groups, 44 states have laws that preserve the traditional definition of marriage; 18 states have passed constitutional amendments protecting marriage; 11 have ballot initiatives or legislative action pending in 2006. Current case: The constitutionality of Proposition 22, California's one-man/one-woman marriage law, is pending before a state court of appeals.